Kirk v. . Turner , 16 N.C. 14 ( 1826 )

The answer denied all personal knowledge of the transaction, (15) and put the plaintiffs to strict proof of their case.

Snipes, on his examination, proved that the deeds were drawn by him, signed and attested as alleged in the bill; that after he witnessed them, he was asked by Mrs. Kirk if he would be at the next court, as she wished the deeds recorded; that he replied it was uncertain, and that she had better go and acknowledge them, whereupon the deeds were handed to Mrs. Kirk, and had not since been seen by the witness.

Another witness, who was seriously impeached, swore that Whithead and his wife both informed him that the latter had, before the marriage, given her negroes to the children of John L. Kirk, the present plaintiffs, reserving a life estate to them both.

A third witness testified that he had applied to Whithead to buy a negro boy, formerly Mrs. Kirk's, and was informed that he could not make a good title to him. A delivery of a deed is, in fact, its tradition from the maker to the person to whom it is made, or to some person for his use, and if the person receiving it for another is authorized to do so, it is not only immediately the maker's deed, but it cannot be rejected by the grantee. If he has not authorized the person to receive it, yet it is the maker's deed until he for whose benefit it is made rejects it. It does not wait for the approbation of this person before it becomes a deed; for his acceptance is presumed until the contrary is shown. It being for his interest, the presumption is, not what he will accept, but that (16) he does. Therefore, if there was any evidence that the deed in question was left with Snipes for the benefit of Mrs. Kirk's grandchildren, and was not subject to her control, the delivery to him for the use of the children would have been complete and the deed efficacious, notwithstanding his redelivery of it to her for the purpose of registration. But the transaction, I think, by no means bears this aspect. Mr. Snipes was called on to write the deed as a settlement preparatory to the marriage which Mrs. Kirk then contemplated. In this he acted as much in the character of her agent as that of the grandchildren. His having the paper in his hands might well arise from his relation to her; there were no words showing that Mrs. Kirk parted with the possession or control of the paper. The request that he would attend court and prove the deed neither shows that the act, on her part, was intended to deprive her of the control of it, nor that the deed was then complete, or that she lost her locus paenitentiae, which it is presumed she intended to retain, at least until there was something like a certainty of her marriage. In fact, her conduct shows that it was her intention then, in case of the marriage, to make such settlement, and no more; at least it does not furnish sufficient evidence that the transaction to which Mr. Snipes testifies was such an one as to divest her of the property and vest it in the plaintiffs, which must be affirmed before we can set up the deed and deprive her husband of the property. If this transaction did not divest her of the slaves, it may be asked what did. If there was a conversation in which she stated that she had given the property to her children, if it should be referred to this inchoate intention, it would not pass the property, for we see that this intention had not that effect. It would be unfair to refer it to a parol gift complete, when there is this transaction to which we may refer her words, and with the more certainty, as her conduct in this transaction refutes all idea of a parol gift, for it appears that if she designed to give, she preferred a written transfer, and had the means in her power of making one.

(17) The declarations of the husband may also be referred to the same attempt; and her conduct afterwards, in not having the deed registered, accompanied by his declarations, proven by a person shown to be of undoubted credit, is a full exposition of her views throughout, viz., that she intended to act in this particular, in case she was to marry, as she pleased; and if disposed to make the settlement, she might use the deed for that purpose, prepared by one in whose skill and judgment she had confidence. That she did not intend to part with the deed is supported by the circumstance that on its face it is not made to depend on the event of her marriage, but is absolute, which would, from the attempt proved by Snipes, if final, deprive her of her property, marriage or no marriage, which I think it is evident she did not design. The probability is that she intended then to give validity to the deed by some act, if she married; if not, it was to have no effect. It seems she changed her mind.

As this is a claim asserted on behalf of infants who had an appearance of a right, each party must pay his own costs.

Bill dismissed.

Cited: Newlin v. Osborn, 49 N.C. 159; Levister v. Hilliard, 57 N.C. 15;Ducker v. Whitson, 112 N.C. 52; Frank v. Heiner, 117 N.C. 82;Robbins v. Roscoe, 120 N.C. 82; Tarlton v. Griggs, 131 N.C. 221;Craddock v. Barnes, 142 N.C. 96; Buchanan v. Clark, 164 N.C. 64; Lynchv. Johnson, 171 N.C. 614, 620.

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